5.  The applicant, Mr Hendrik Jan van der Velden, is a Netherlands national who was born in 1965. As far as the Court is aware, he is currently detained in a custodial clinic in Groningen.
6.  On various dates in 2002, the applicant committed five bank robberies and stole four cars.
7.  In the course of the criminal investigation, the applicant underwent psychological and psychiatric examinations. The report by the psychologist contains the following:
“At the time of the facts charged, the [applicant] was suffering from inadequate development or pathological disorder. Most likely there is a schizoid personality disorder, but atypical autism cannot be ruled out.
Owing to a lack of social reciprocity the [applicant] cannot adequately adapt his actions to the consequences for the other person. In weighing his motives to act, those consequences remain out of the picture to a large extent. For that reason, the [applicant’s] control of his impulses is impaired.”
The psychiatrist’s report contained the following:
“At the time of the facts charged, the [applicant] was suffering from inadequate development of his mental faculties that can be described as: a personality structure showing signs of serious neurotic distortion. It is then certain that there is no present pathological disorder of the mental faculties. The [applicant’s] various personality characteristics, including in particular his limited frustration tolerance and insufficient impulse control, make him more liable than someone without these personality traits to impulsive behaviour transgressing limits. He gets annoyed and irritated more readily than a person without the personality traits described, has poor ‘stress resistance’, and is relatively easily inclined to ill-considered, reckless and, as it turns out, criminal acts. The [applicant] himself uses the expression ‘short-sightedness’ in this connection.”
Both recommended a finding of diminished criminal responsibility.
8.  The applicant was tried by the Roermond Regional Court (rechtbank), which on 22 April 2003 convicted him of extortion and theft by means of breaking and entering. It sentenced him to six years’ imprisonment. It ordered him placed at the disposal of the Government (terbeschikkingstelling, hereafter “TBS order”) with confinement in a custodial clinic (bevel tot verpleging van overheidswege). Its reasoning, as relevant to the case before the Court, included the following:
“The accused, through his actions, has committed a serious interference with the mental integrity (geestelijke integriteit) of the staff of the banks he robbed. In so doing, he has caused them personal suffering and psychological harm.
In addition, it is a fact of general knowledge that victims of crimes such as [the bank robberies found proven] may for a long time continue to suffer feelings of fear and insecurity, which can seriously hamper their participation in social life.”
9.  The prosecution did not appeal against this judgment. The applicant did, but withdrew his appeal before it was heard.
10.  The TBS order started to run on 29 August 2005, the day on which the applicant would otherwise have become eligible for provisional release from his prison sentence. On 12 September 2007, after an initial two-year term, the Roermond Regional Court extended it for a further two years.
11.  On 7 July 2009 the public prosecutor applied to the Roermond Regional Court for a further two-year extension of the TBS order. The application stated that the original order had been given in connection with “a crime of violence directed against, or endangering, one or more persons”, and that it was necessary for the safety of others or the general safety of persons for it to be extended.
12.  An expert report prepared by the custodial clinic, dated 29 June 2009, noted a certain improvement in the applicant’s state but expressed the view that his return to society should be a gradual and supervised process. It accordingly recommended extending the TBS order.
13.  The Regional Court, sitting in a composition other than at the time of the applicant’s trial, gave its decision on 18 August 2009. It declared the public prosecutor’s application inadmissible. Its reason for so doing was that the TBS order could not lawfully be extended beyond four years: the judgment of the trial court did not state that the applicant had been found guilty of an indictable offence (misdrijf) directed against, or endangering, the bodily inviolability of one or more persons (Article 38e § 1 of the Criminal Code (Wetboek van Strafrecht); see below). Its reasoning included the following:
“The Regional Court considers ... that acts such as those of which [the applicant] has been convicted may raise issues as regards the physical integrity of persons.
It does not appear from the Regional Court’s judgment of 22 April 2003, either explicitly or implicitly, that such an issue arises in the present case, nor whether the TBS order has been given for that reason.
In giving reasons for ordering the measure, the judgment states in so many words that there has been a serious interference with the mental integrity of persons, whereas for the remainder a formulation referring to physical integrity is entirely absent.
Although the duty to give reasons, set out in Article 359 § 7 of the Code of Criminal Procedure (Wetboek van Strafvordering), is not subject to stringent requirements, the Regional Court takes the view that the aforementioned line of reasoning, given especially that the acts found proven cannot be considered per se as directed against physical integrity, does not justify finding that the Regional Court intended the TBS order to be indefinite.
This means that the TBS order was imposed for a term not exceeding four years.”
14.  The public prosecutor appealed, arguing that the danger posed to physical integrity was apparent from the circumstances in which the bank robberies had been committed. These had included the threat of violence using a handgun.
15.  The custodial clinic submitted an additional report. It stated that the Regional Court’s decision had raised the applicant’s hopes, but that a process of gradual and supervised resocialisation remained preferable to the complete termination of the TBS order.
16.  The appeal was heard by the Arnhem Court of Appeal, which gave a decision on 13 October 2009. Its reasoning included the following:
“It is laid down in Article 359 §§ 7 and 8 of the Code of Criminal Procedure that a judgment imposing a TBS order in connection with an indictable offence that is directed against, or endangers, the bodily inviolability of one or more persons shall so indicate, giving reasons, on pain of nullity. Contrary to what counsel has argued, the Roermond Regional Court, in its judgment of 22 April 2003, has not devoted any explicit consideration to the question whether the TBS order is imposed on the [applicant] in connection with an indictable offence that is directed against, or endangers, the bodily inviolability of one or more persons. In disagreement with counsel, the Court of Appeal takes the view that the use in the judgment of the formulations ‘serious interference with [...] mental integrity’ and ‘personal suffering and psychological harm’ cannot be taken as ‘giving reasons’ within the meaning of Article 359 § 7 of the Code of Criminal Procedure. Said formulations have plainly been included in the judgment within the framework of setting the sentence. In the considered view of the Court of Appeal, as regards what is set out in Article 359 § 7 of the Code of Criminal Procedure, there is an omission (verzuim). However, the judgment is final and no legal consequence can any longer be attached to that omission. ...”
It went on to find that the applicant’s use of a gas alarm pistol to threaten bank staff constituted violence directed not only against the mental integrity of persons but also against their bodily inviolability, which meant that the four-year maximum provided in Article 38e § 1 of the Criminal Code did not apply, and to extend the TBS order for one year.